Law Commons^™

Class Of 1998, University Of Richmond

Class Photos 1998-Current

This facebook contains photographs of the Class of 1998 at the T. C. Williams School of Law.

Common Sense And Other Legal Reforms, Carl W. Tobias

Law Faculty Publications

Enactment of Congress' proposed Common Sense Legal Reforms Act (CSLRA) would impose procedural and substantive reforms that could significantly affect much federal civil litigation and could have substantial systemic impacts on the civil justice process. For instance, the measure's advocates drafted and introduced the proposed legislation with little apparent appreciation for how it might conflict with a number of ongoing public and private reform initiatives, such as an earlier Congress's Civil Justice Reform Act of 1990 and the American Law Institute's efforts to adopt a Third Restatement of Torts governing products liability.

The bill's enactment, therefore, could additionally complicate the …

Toward A Sustainable Urbanism: Lessons From Federal Regulation Of Urban Stormwater Runoff, Joel B. Eisen

Law Faculty Publications

This Article focuses on the particularly vexing challenge of forging a sustainable urbanism in Edge Cities and analyzes regulatory attempts to control urban stormwater runoff. If our task is to "describe the natural world and to evaluate our actions toward it in ways that presuppose ... [a] community between nature and mankind," we must also characterize and address this source of considerable pollution, which originates from thousands of dispersed locations. Unfortunately, environmental protection efforts have only begun to address the pollution of urban stormwater runoffs. Parts II and III of this Article detail these largely unsuccessful attempts and conclude that …

Resolving Still Unresolved Issues Of Bankruptcy Law: A Fence Or An Ambulance, David G. Epstein

Law Faculty Publications

Congress established a Bankruptcy Review Commission ("'Commission") when it enacted the Bankruptcy Reform Act of 1994. Although the Commission is empowered to review the Bankruptcy Code and make recommendations based upon its findings and conclusions, its focus is directed toward making suggestions that do not disturb the fundamental principles and balance of current law. Instead, the stated purposes of the Commission are: ( 1) to investigate and study issues and problems relating to title 11, United States Code (commonly known as the "'Bankruptcy Code"); (2) to evaluate the advisability of proposals and current arrangements with respect to such issues and …

Automatic Disclosure And Disuniformity In The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

The 1993 amendment to Federal Rule of Civil Procedure 26(a)(1) imposes automatic disclosure and is the most controversial formal proposal to revise the Federal Rules ever developed. The provision requires litigants to divulge information that is important to their cases before commencing formal discovery. The amendment also permits all ninety-four federal districts to vary the revision or to reject it completely. Moreover, judges and parties in specific cases may modify any disclosure requirements adopted by the districts.

The amendment has remained controversial since it became effective on December 1, 1993. Less than a majority of districts subscribe to the Federal …

Wills, Trusts And Estates (Annual Survey Of Virginia Law, 1994-95), J. Rodney Johnson

Law Faculty Publications

The 1995 Session of the General Assembly enacted legislation dealing with wills, trusts, and estates that added, amended, or repealed a number of sections of the Code of Virginia. In addition to this legislation, there were five Supreme Court of Virginia opinions and one Fourth Circuit opinion in the year ending June 1, 1995 that involved issues of interest to both the general practitioner and the specialist in wills, trusts, and estates. This article analyzes each of these legislative and judicial developments.

The Implicit "Takings" Jurisprudence Of Article 9 Of The Uniform Commercial Code, David Frisch

Law Faculty Publications

Part I of this Article begins by reasserting that central to the idea of property rights is the legal entitlement to remedies that permits a person to exercise dominion over the specific asset or to exclude the exercise of dominion by others. Next, part I examines the essence of a security interest and demonstrates that it is a protected property interest. Part II sets forth a model of priorities that suggests that although property interests should ordinarily be protected by a property rule, there is something special about a security interest, implying the need for greater contingency and justifying a …

Participant Compensation In The Clinton Administration, Carl W. Tobias

Law Faculty Publications

A half-decade ago in the pages of this journal, I suggested that the Bush Administration, the federal administrative agencies, and Congress seriously consider revitalizing participant compensation. Participant compensation is the agency payment of expenses that members of the public incur when they are involved in administrative proceedings. Initiatives in the executive and legislative branches supported my recommendation that both branches revive this valuable mechanism for facilitating citizen participation in agency processes.

Much to my chagrin, the Bush Administration neither introduced legislation which would have specifically authorized participant compensation nor suggested that agencies rely on their implied authority to reimburse parties, …

A Salute To Judge William W. Schwarzer, Carl W. Tobias

Law Faculty Publications

Tribute to Senior United States District Judge William W. Schwarzer upon his retirement as Director of the Federal Judicial Center

Studying Montana State Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Several years ago in the pages of this journal, I asked and attempted to answer the question whether the 1993 session of the Montana Legislature should adopt a civil justice reform act. The article initially afforded a brief analysis of the problems in federal civil litigation that prompted the United States Congress to pass the Civil Justice Reform Act (CJRA) of 1990. I next evaluated whether the state legislature in Montana should enact similar legislation which would govern civil litigation in the state court system. Because there were relatively few important reasons for adopting a measure covering civil justice reform …

Fourth Circuit Finds University Of Maryland Minority Scholarship Program Unconstitutional, Podberesky V. Kirwan, 38 F.3d 147 (4th Cir. 1994), Kimberly J. Robinson

Law Faculty Publications

The use of minority scholarships to create a diverse student body and to remedy past discrimination has been the subject of considerable controversy in recent years. Although such scholarships constitute a small percentage of financial aid for higher education, opponents of minority scholarships argue that they unfairly discriminate against non-minority students on the basis of race. In Podberesky v. Kirwan, the Fourth Circuit held that the University of Maryland at College Park (UMCP) denied Daniel Podberesky, a Hispanic/white student, equal protection of the laws by excluding him from consideration for the race-based Benjamin Banneker Scholarship Program. The program, the court …

The Last-In-Time Marriage Presumption, Peter N. Swisher

Law Faculty Publications

The typical scenario for the last-in-time marriage presumption is not as unusual as one might expect: A husband (or wife) has unexpectedly died, and the bereaved surviving spouse is in the process of bringing a legal proceeding that may include a probate action, a wrongful death action, a suit for social security benefits, a workers' compensation action, a life insurance action, or another legal action for related compensatory, probate, or insurance benefits. However, during the pendency of these actions a former wife comes forward, claiming that she has never been divorced from her deceased spouse and that she, rather than …

Welfare Reform, Child Care Costs, And Taxes: Delivering Increased Work-Related Child Care Benefits To Low-Income Families, Mary L. Heen

Law Faculty Publications

This Article focuses specifically on.tax-transfer integration of work-related child care assistance. Part I discusses the current child care assistance available to low-income workers through direct transfer programs and through the income tax system. Part II describes the need for increased child care funding and the failure of current welfare reform proposals to meet that need. Part III examines the theoretical and practical issues that must be addressed before the tax system is used as a mechanism for delivering increased child care assistance. to low-income families. Part IV critiques a proposed funding mechanism that would redirect tax benefits to lower income …

Recent Case: Fourth Circuit Finds University Of Maryland Minority Scholarship Program Unconstitutional, Podberesky V. Kirwan, 38 F.3d 147 (4th Cir. 1994), Kimberly J. Robinson

Law Faculty Publications

In Podberesky v. Kirwan,4 the Fourth Circuit held that the University of Maryland at College Park (UMCP) denied Daniel Podberesky, a Hispanic/white student, equal protection of the laws by excluding him from consideration for the race-based Benjamin Banneker Scholarship Program. The program, the court held, was not narrowly tailored to remedy past discrimination at the University. In its analysis, however, the court applied only a portion of the applicable legal standard. A proper analysis of the program using the factors set forth in United States v. Paradise would have demonstrated that the program was narrowly tailored to address the racial …

The Impoverished Idea Of Circuit-Splitting, Carl W. Tobias

Law Faculty Publications

Senators representing every state in the latest iteration of the projected Twelfth Circuit recently revived the idea by introducing Senate Bill 956, a proposal that closely resembles a measure debated by Congress in 1990. The new bill's sponsors contend that certain factors, principally the Ninth Circuit's substantial size and burgeoning docket, have now made division of the court imperative.

This Article initially describes the origins and development of the proposed legislation. It then assesses the measure and arguments for and against dividing the Ninth Circuit. I find that there is no greater need for bifurcation now than before and that …

Participatory Government And Communal Property: Two Radical Concepts In The Virginia Charter Of 1606, Finbarr Mccarthy

University of Richmond Law Review

On April 26, 1607, about one hundred English men landed on the Atlantic shore of North America near Jamestown, Virginia. There they established the foundation for what would become the first permanent English colony in America. These men, and the men and women who followed in the next decade, left as their legacy a society that combined a rudimentary form of popular government with a system of private property. But these settlers established that society only after conducting seventeen turbulent years of social experiments. Had those experiments conducted in that Virginia swamp turned out differently, we might now live under …

Much Ado About Nothing: Achieving "Essential" Negotiability In An Electronic Environment, David Frisch

Law Faculty Publications

The approach adopted here is both historical and analytical. Part II of this Article describes the historical development of assignment law, and demonstrates that it parallels a more general shift of the law away from physical conceptions of property. It concludes that although a paper-based document may still be a practical requirement, there is no longer a valid theoretical justification for not making the law of negotiable instruments media neutral. In Part III we survey the features of negotiable instrument law and compare it generally with the law of assignments. This comparison suggests that the most striking substantive difference between …

Increasing Balance On The Federal Bench, Carl W. Tobias

Law Faculty Publications

In President Bill Clinton's first year of service, he nominated unprecedented numbers and percentages of highly qualified women and minorities to the federal judiciary. The Clinton Administration correspondingly employed an effective process for choosing potential jurists that generated relatively little controversy.

Some wondered whether President Clinton could improve his first year judicial selection record during his second year in office, especially given the number of international conflicts and pressing domestic matters that faced the Administration. These complications threatened to deflect the Administration's attention from naming judges.

Now that the 103d Congress has adjourned and President Clinton has reached mid-term, the …

Annual Survey Of Virginia Law: Domestic Relations, Deanna D. Cook

University of Richmond Law Review

It is well known that non-conforming payments or overpayment of support will not entitle a payor spouse to future credit against his obligations. This continues to be the rule in Virginia. In the case of Sanford v. Sanford, the Virginia Court of Appeals reversed the trial court's decision to credit excess spousal support payments made by the husband against his future obligations. The husband agreed to pay spousal support pursuant to a property settlement agreement, which was incorporated into the parties' final divorce decree. The husband was then terminated by his employer, but he received one year severance pay. Based …

The Dead Hand Loses Its Grip In Virginia: A New Rule For Trust Amendment And Termination?, Jessica L. Lacey

University of Richmond Law Review

The majority rule in America for the amendment and termination of trusts was first adopted in Claflin v. Claflin and came to be known as the Claflin Doctrine. This rule states that "a testator has a right to dispose of his own property with such restrictions and limitations, not repugnant to law, as he sees fit, and that his intentions ought to be carried out, unless they contravene some positive rule of law, or are against public policy." In effect, the Claflin Doctrine is codified in the Restatement (Second) of Trusts, which states that trust beneficiaries cannot compel a trust's …

Annual Survey Of Virginia Law: Insurance Law, E. Lewis Kincer Jr.

University of Richmond Law Review

The Supreme Court of Virginia has recently decided several significant cases in the insurance realm. The court has been most active, at least in number of cases, in the field of uninsured [UM] and underinsured motorist [UIM] coverages, followed closely by decisions affecting automobile liability insurance policies. Although no clearly discernable trend appears to have been established by the court's insurance decisions in the past year, several observations may be made of the cases, as well as the court's general philosophy of judicial interpretation of insurance policies. "An insurance policy is a contract; therefore, we give the words used in …

Annual Survey Of Virginia Law: Campaign And Election Law, Claudia T. Salomon

University of Richmond Law Review

This is the first year the University of Richmond Law Review has surveyed recent developments in Virginia's campaign and election laws. Thus, this article provides a general overview of the laws governing state and local candidates concerning (1) qualifications for candidacy, (2) campaign finance, and (3) campaign and election misconduct.

Welcome To The Journal, David R. Johnson

Richmond Journal of Law & Technology

I applaud your decision to visit the Richmond Journal of Law & Technology. If you are a newbie, Welcome to Cyberspace! If a seasoned net surfer, then you fully appreciate that the number and complexity of the legal issues facing the net is growing every day.

Contracts, Copyright And Preemption In A Digital World, I Trotter Hardy

Richmond Journal of Law & Technology

Copyright is designed to provide some form of protection against unauthorized use of original informational materials. The rapid shift of information production and distribution to electronic form, with its corresponding ease of copying, naturally makes copyright-dependent industries nervous. Much talk in the news and on the "net" these days is about the future of copyright law, a law developed in an age of print and now perhaps too tied to that medium to have ready application to today's information technology.

Apple V. Microsoft: Virtual Identity In The Gui Wars, Joseph Myers

Richmond Journal of Law & Technology

The company that controls the interface of the next major operating system will have the ability to set the standards for application software. It was not surprising that Apple Corporation began its fight to stop Windows from being that major operating system after Microsoft Corporation introduced the various versions of its Windows software and announced plans for this program to replace the already widely selling DOS operating system. Unfortunately, Apple chose to conduct this war on the complex and often confusing battleground of copyright law, which ultimately proved to be its downfall.

Allied Chemical, The Kepone Incident, And The Settlements: Twenty Years Later, Robert R. Merhige Jr., Manning Gasch Jr., William B. Cummings, Robert H. Sand, Robert B. Smith Iii, W. Wade Berryhill

University of Richmond Law Review

Twenty years ago this July the happenings at a small chemical plant in Hopewell, Virginia ushered in what has since become an incident of national impact and importance. Through the prosecution of criminal cases, the filing of civil personal injury suits and the closing of the James River to fishing, the release of the chemical from the Kepone manufacturing process gained national attention.

Clinging To History: The Supreme Court (Mis)Interprets Federal Rule Of Evidence 801(D)(1)(B) As Containing A Temporal Requirement, Christopher A. Jones

University of Richmond Law Review

The adoption of the Federal Rules of Evidence (the Rules) resulted in a more liberal standard for the admission and use of various forms of evidence. For example, the Rules altered the definition of "relevant evidence" increasing the scope of evidence that can be presented to a jury. Also, the Rules per- mit prior inconsistent statements to be admitted as substantive evidence rather than for impeachment purposes only. The Advisory Committee enunciated these changes, and other changes resulting from the adoption of the Rules, in their notes accompanying the Rules.

From Kepone To Exxon Valdez Oil And Beyond: An Overview Of Natural Resource Damage Assessment, Danielle Marie Stager

University of Richmond Law Review

In July 1975, officials from the Virginia State Department of Health learned that employees of the Life Science Product Company ("Life Science"), in Hopewell, Virginia, had been poisoned by a toxic chemical known as Kepone. Life Science had produced Kepone under contract for Allied Chemical Corporation ("Allied Chemical"), the original developer and manufacturer. Shortly thereafter, state officials discovered that both Life Science and Allied Chemical had unlawfully discharged Kepone into freshwater tributaries of the James River. In addition to poisoning their own employees, Life Science and Allied Chemical had also contaminated Virginia's atmosphere, soil, and wa- terways with Kepone.

Deception, Self-Deception, And Myth: Evaluating Long-Term Environmental Settlements, William H. Rodgers Jr.

University of Richmond Law Review

This paper draws upon six famous settlements that are known in various degrees to students of environmental law. Three are a matter of deep history: the 1970 Environmental Defense Fund settlement that led the last manufacturer of DDT in the U.S. to cease discharges into the Los Angeles sewer system and thence into Santa Monica Bay, the Kepone settlement of the mid-70s that followed in the wake of Judge Merhige's initial assessment of a record-breaking criminal fine of $13.24 million, and the Hudson River settlement of the early 1980s in which environmentalists gave up demands for cooling towers on several …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.